The process by which employee complaints and misconduct allegations are handled can be equally or more important than the ultimate outcome. Taft attorneys ensure that the process is unassailable, which helps insulate the company from liability over the conclusions reached as a result of that process.
Employer investigations are sometimes plagued by common problems, such as:
- Having the investigation led by individuals who are arguably interested in the outcome.
- Failing to document the process and the statements made by the witnesses.
- Failing to reconcile conflicting evidence. Management can and should reach the best, most defensible conclusion indicated by the available facts — even if some may disagree with that conclusion. Failing to make a decision because of conflicting evidence may simply prolong or aggravate the underlying problem.
- Tying conclusions to violations of law, such as finding that an employee stole money or created a hostile work environment. Each employer’s policies should guide each investigation. For example, a theft investigation may result in the conclusion that the employee mishandled cash, even if the disposition of that cash is uncertain, and the resulting termination would be for violating the company’s policy on cash management. Similarly, a harassment investigation may result in the conclusion that an employee violated the organization’s policy against harassment, which can be grounds for termination even if it does not rise to the level of an actionable hostile work environment under the law.
Based on our experience litigating and trying employment cases, our attorneys know that a well-executed investigation can mean the difference between winning and losing a related discrimination or other claim. Our guidance to clients is always given with an eye toward how a court or a jury would perceive the steps the employer took before terminating or disciplining an employee for misconduct.
In many situations, we advise management on best practices for conducting the investigation itself, including the related documentation, as well as the conclusions to be reached. Where members of management are accused of wrongdoing themselves, Taft’s attorneys may also serve as the investigators.